Citation Nr: 0532707
Decision Date: 12/05/05 Archive Date: 12/21/05
DOCKET NO. 98-03 780A ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Buffalo, New York
THE ISSUES
1. Entitlement to an evaluation in excess of 10 percent for
the service-connected right leg scar.
2. Entitlement to an initial evaluation in excess of 20
percent for the service-connected residuals of a
prostatectomy.
3. Entitlement to an initial evaluation in excess of 70
percent for the service-connected post-traumatic stress
disorder (PTSD).
4. Entitlement to service connection for kidney stones both
on a direct basis and as secondary to service-connected
residuals of a prostatectomy.
5. Entitlement to an initial evaluation in excess of 20
percent for the service-connected degenerative joint disease
of the right knee status post meniscal tear.
6. Entitlement to an initial evaluation in excess of 10
percent for the service-connected right peroneal nerve
injury, hallucis longus.
7. Entitlement to service connection for elevated
triglyceride levels.
8. Entitlement to an effective date earlier than February
10, 1997 for the grant of a total disability rating based on
individual unemployability (TDIU).
REPRESENTATION
Veteran represented by: Vietnam Veterans of America
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
C. Kedem, Counsel
INTRODUCTION
The veteran had active duty service from December 1957 to
March 1969.
This case initially came to the Board of Veterans' Appeals
(Board) on appeal from August 1997, August 1999, March 2000
and June 2001 rating decisions of the RO.
The RO assigned increased disability ratings, as the veteran
requested, for the service-connected right leg scar and
residuals of a prostatectomy.
Although each increase represents a grant of benefits, a
decision awarding a higher rating, but less that the maximum
available benefit, does not abrogate the pending appeal. AB
v. Brown, 6 Vet. App. 35, 38 (1993). Thus, these matters
continue before the Board.
The Board notes that the RO also assigned an increased rating
to the service-connected right knee degenerative joint
disease following its receipt of the veteran's Notice of
Disagreement. This matter, as will become apparent
hereinbelow, is not yet ready for Board review.
It appears that the veteran is seeking service connection for
hypertension claimed as secondary to service-connected PTSD.
He also seems to be seeking an effective date earlier than
March 18, 1998 for the grant of service connection for right
knee degenerative joint disease.
As these issues have not been adjudicated specifically, the
Board refers them to the RO for initial adjudication.
Godfrey v. Brown, 7 Vet. App. 398 (1995)
By August 1997 rating decision, the RO denied service
connection for elevated triglycerides. The veteran filed a
timely Notice of Disagreement in September 1997.
By March 2000 rating decision, the RO granted service
connection for a right peroneal nerve injury, hallucis longus
to which it assigned a 10 percent evaluation and for right
knee degenerative joint disease to which it assigned a 10
percent evaluation.
By that rating decision, the RO also granted TDIU benefits.
The veteran expressed disagreement with the initial
evaluations assigned to the nerve and right knee disabilities
and contested the effective date assigned to the grant of
TDIU benefits by Notice of Disagreement received that month.
The Board notes that subsequent to the March 2000 Notice of
Disagreement, an increased rating was granted for the
service-connected right knee disability and an earlier
effective date was assigned to the grant of TDIU benefits.
Nonetheless, as a Statement of the Case has not yet been
issued on the foregoing matters, additional action by the RO
is required as set forth below in the Remand portion of this
decision. See Manlincon v. West, 12 Vet. App. 238 (1999).
These matters as well as other discussed hereinbelow are
being remanded to the RO via the Appeals Management Center
(AMC), in Washington, DC. VA will notify the veteran if
further action is required on his part.
FINDING OF FACT
The service-connected PTSD is not shown to have been
manifested by symptoms consistent with total social and
industrial inadaptability during the appeal; current
assertions of gross impairment of thought processes or
communication, persistent delusions or hallucinations,
inappropriate behavior, intermittent inability to perform
daily activities of living, disorientation to time or place
or serious memory loss have not been advanced.
CONCLUSION OF LAW
The criteria for the assignment of an initial rating in
excess of 70 percent for the service-connected PTSD have not
been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002); 38
C.F.R. §§ 4.7, 4.130 including Diagnostic Code 9411 (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in
part at 38 C.F.R § 3.159, amended VA's duties to notify and
to assist a claimant in developing information and evidence
necessary to substantiate the claim.
The Board finds that the duties to notify and assist the
veteran have been met. Furthermore, given the contentions
advanced in connection with the claim for an increased rating
for the service-connected PTSD, the Board finds that any
defect regarding these duties would not constitute more than
harmless error.
In the recent rating decision of August 2002, the RO assigned
an increased rating of 70 percent for the service-connected
PTSD. This was made effective on February 10, 1997.
Significantly, the veteran also has been assigned a TDIU
rating, effective of the same date.
The VA examination in June 1999 showed that the veteran
suffered from PTSD and major depression, single episode,
moderate. A GAF score of 48 also was assigned at that time.
The medical record in this case when viewed in its entirety
does not serve to establish that the veteran has experienced
manifestations reflective of total social and industrial
inadaptability due to the service-connected PTSD under the
newer version of the rating criteria.
Hence, absent current assertions of the veteran experience
gross impairment of thought processes or communication,
persistent delusions or hallucinations, inappropriate
behavior, intermittent inability to perform daily activities
of living, disorientation to time or place or serious memory
loss, a 100 percent schedular rating is not for consideration
in accordance with the applicable criteria in this case.
ORDER
An increased rating in excess of 70 percent for the service-
connected PTSD is denied.
REMAND
As indicated hereinabove, the RO denied entitlement to the
following: service connection for elevated triglyceride
levels, an increased rating for a service-connected right
peroneal nerve disability, an increased rating for right knee
degenerative joint disease, and an effective date earlier
than February 10, 1997 for the grant of TDIU benefits.
Timely notices of disagreement were filed, but the RO failed
to issue statements of the case regarding these matters.
When there has been an initial RO adjudication of a claim and
a notice of disagreement as to its denial, the claimant is
entitled to a statement of the case, and RO failure to issue
same is a procedural defect. Manlincon, 12 Vet. App. at 240-
41.
Pursuant to 38 C.F.R. § 19.9(a) (amended effective Oct. 8,
1997), if further evidence or clarification of the evidence
or correction of a procedural defect is essential for a
proper appellate decision, the Board is required to remand
the case to the RO for necessary action.
Therefore, the Board must remand this aspect of the veteran's
claim for preparation of a Statement of the Case as to
entitlement to the benefits enumerated above. See VAOPGCPREC
16-92 (July 24, 1992).
The RO also should schedule VA medical examinations to
evaluate the severity of his service-connected residuals of a
prostatectomy and right knee scar and for an opinion
regarding the etiology and approximately date of onset of
kidney stones as directed hereinbelow.
Thus, these matters are remanded to the RO for the following
action:
1. The RO must issue a Statement of the
Case concerning the issues of service
connection for elevated triglyceride
levels, an increased rating for a
service-connected right peroneal nerve
disability, an increased rating for right
knee degenerative joint disease, and an
effective date earlier than February 10,
1997 for the grant of TDIU benefits. The
veteran should, of course, be advised of
the time period within which to perfect
his appeal as to these matters.
38 C.F.R. § 20.302(b) (2004). The
Statement of the Case must contain the
current version of 38 C.F.R. § 3.159.
2. The RO must schedule a VA
genitourinary examination to determine
the nature and likely etiology of the
claimed kidney stones. The examiner
should elicit from the veteran and record
a complete clinical history. Based on
his/her review of the case, the examiner
should opine as to whether it is at least
as likely as not that the veteran's
kidney stones originated in service or
within one year of separation. The
examiner should also comment on the
relationship, if any, between the
veteran's kidney stones and his service-
connected residuals of a prostatectomy.
The claims file and a copy of this remand
must be made available to and reviewed by
the examiner prior to the requested
examination. The examiner should
indicate in the report that the claims
file was reviewed. All necessary
diagnostic tests should be performed. A
rationale for all opinions and
conclusions must be provided.
3. The RO should schedule a VA
genitourinary examination to determine
the current nature and severity of the
service-connected residuals of a
prostatectomy. All symptoms and
manifestations must be reported in detail
to include frequency of urination that is
due to the service-connected residuals of
a prostatectomy as opposed to urinary
frequency resulting from kidney stones.
The need to wear absorbent materials must
be assessed. The claims file and a copy
of this remand must be made available to
and reviewed by the examiner prior to the
requested examination. The examiner
should indicate in the report that the
claims file was reviewed. All necessary
diagnostic tests should be performed. A
rationale for all opinions and
conclusions must be provided.
4. The RO must schedule a VA examination
to determine the current nature and
severity of the service-connected right
leg scar. All symptoms and
manifestations must be reported in
detail. The claims file and a copy of
this remand must be made available to and
reviewed by the examiner prior to the
requested examination. The examiner
should indicate in the report that the
claims file was reviewed. All necessary
diagnostic tests should be performed. A
rationale for all opinions and
conclusions must be provided.
5. Finally, following completion of the
requested development, the RO should
readjudicate the claims (that is,
readjudicate all issues not remanded
under Manlincon). If any benefit sought
on appeal remains denied, the veteran and
his representative should be provided a
Supplemental Statement of the Case. It
must contain notice of all relevant
actions taken on the claim for benefits,
to include a summary of the evidence and
applicable law and regulations considered
pertinent to the issues currently on
appeal. The supplemental statement of
the case must obtain the current version
of 38 C.F.R. § 3.159. An appropriate
period of time should be allowed for
response thereto.
Thereafter, the case should be returned to the Board for the
purpose of appellate disposition, if indicated. The veteran
has the right to submit additional evidence and argument on
the matters the Board has remanded. Kutscherousky v. West,
12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans Benefits
Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat.
2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112).
_________________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs